Griffin v. O'Neal, Jones & Feldman, Inc. (604 F. Supp. 717, 1985)

OPINION AND ORDER GRANTING MOTION TO DISMISS

SPIEGEL, District Judge:

This matter came on for consideration of the motion to dismiss filed by defendants Carter-Glogau Laboratories, Inc. and Reveo D.S., Inc. (doc. 6). A brief in opposition has been filed by plaintiffs (doc. 11), to which defendants have replied (doc. 13). For the reasons set forth below, we hereby Order that counts four and six be stricken from plaintiffs’ Complaint and, consequently, that plaintiffs’ Complaint be dismissed in its entirety, as we are without jurisdiction to hear their case.

Plaintiffs Kevin and Maureen Griffin, individually, and as Next Friends and Guardians of their minor daughter Meghan, seek recovery from all defendants based on events that had their inception when Meghan was born prematurely at Good Samaritan Hospital in Cincinnati, Ohio. They sue for damages for themselves and for Meghan that stem from injuries suffered by her as a result of the administering of E-Ferol Aqueous Solution to her for an extended period of time following her birth. Plaintiffs assert seven causes of action: negligence; breach of the warranty of merchantibility and fitness for an intended purpose; strict liability; violation of the Federal Food, Drug and Cosmetic Act (FDCA); fraud; violation of Title IX of Organized Crime Control Act (hereinafter the Racketeer Influenced and Corrupt Organizations Act or RICO); and willful and wanton conduct. There exists no diversity of citizenship between the parties. Rather, plaintiffs claim jurisdiction by way of 28 U.S.C. § 1331, citing their allegations of liability grounded on the FDCA and RICO, both federal statutes, and upon the doctrines of pendent and ancillary jurisdiction.

Through their motion to dismiss, defendants challenge sufficiency of plaintiffs’ federal claims under the FDCA and RICO, arguing that no private cause of action can be implied under the former and that the facts of this case are inapplicable to the latter. If defendants are correct on both counts, we would lack federal question or “arising under” jurisdiction. Absent diversity of citizenship, this case would warrant dismissal, thus leaving plaintiffs to their remedies in state court.

Specifically, pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P., defendants move for an order striking counts four (FDCA) and six (RICO) of plaintiffs’ Complaint and then for dismissal of plaintiffs’ Complaint for lack of subject matter jurisdiction. The standard of review by which we are bound has been set forth in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss ought not to be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. at 45-46, 78 S.Ct. at 101-102 (footnote omitted). In addition, we must “accept as true all the well-pled allegations in the complaint under attack.” Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir.1983); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). It is within this framework that we evaluate defendants’ motion.

I

The Federal Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq., is a public protection statute, one designed, among other things, to keep misbranded and/or adulterated articles from entering interstate commerce. See United States v. Walsh, 331 U.S. 432, 434, 67 S.Ct. 1283, 1284, 91 L.Ed. 1585 (1947). Congress has provided criminal penalties to be imposed on those found to violate the prohibited acts set forth in § 331. It is clear from the face of the statute that no civil private right of action exists. Notwithstanding this omission, plaintiffs ask this Court to imply a cause of action because “there is no language contained